Statement of the Case
Thе indictment, returned on February 5, 1958, charged that the appellant, duly registered with the Local Board at Bakersfield, Cаlifornia, was classified I-O; that he was ordered to report “for civilian work contributing to the mantenance of the National Health, Safety, and Interest, at the Los Angeles County Department of Charities, on September 24, 1957”; and at thаt time he knowingly failed and neglected to report for civilian *119 work in lieu of induction into the Armed Forces of the Unitеd States.
He was tried without a jury before Judge Jertberg, was found guilty, and was sentenced to ninety days imprisonment. From that judgment, thе present appeal was taken.
The indictment was brought under 50 U.S.C.A.Appendix, § 462. (As printed in the Transcript, the Section is еrroneously given as 562).
The appellant is a Jehovah’s Witness “minister”.
The Appellant’s Arguments
1. The appellant presented new evidence of such a nature that his classification should have been reopened.
2. The Board violated its procedural regulations in the manner in which it handled the problem.
3. The Local Board was required to reopen. Instead, it took no action whatsoever upon receipt of evidence of new status.
4. The regulations required that it at least send a letter informing the apрellant that it did not consider his new evidence sufficient to justify reclassification.
5. The regulations required that there be a reopening of the classification when such evidence of new status was presented. A reopening, еven if it resulted in the same (or a worse) classification, would have given the registrant the opportunity for an administrative appellate determination.
The Appellee’s Position
1. The appellant did not bring himself within the regulations governing reopening.
2. He did nоt submit new evidence wdiich if true would justify a change in his classification.
3. The Local Board was not required to advise thе appellant that it would not reopen his classification.
The appellant’s case rests upon just one fundamental point. It is asserted that appellant submitted new evidence to the Local Board after his last сlassification, and the Board should have either reopened and reclassified him, or should have notified him that it was not going to reopen his classification.
It is apparent that the appellant is attempting to plaсe the appellee upon the horns of a dilemma. There is, however, no dilemma, because the aрpellant’s initial premise is a mere assertion, not a fact.
The Appellant Did Not Submit To the Local Board а Written Request That His Classification Be Reopened.
The appellant’s written communications to the Board did nоt request a reopening of his classification. He does not deny this, but seeks to avoid the impact of this omission by stаting that “An express request for a reopening of a classification is not necessary.”
In that contention the appellant is in error. Section 1625.2 of Title 32 of the Code of Federal Regulations specifically provides thаt the Local Board “may” — not “must” — “reopen and consider anew the classification of a registrant (1) upon thе written request of the registrant”, etc. This language of the Code is not permissive, but mandatory, so far as the requirement оf a written request is concerned.
The appellant failed to meet the plain requirement of the Regulation, and is therefore barred from receiving the relief provided in the article that he invokes.
As Judge Jertberg observed, “The record is clear that the defendant made no express request that his classification be reopened.”
The Appellant Did Not Submit New Evidence That Would Justify a Change In His Classification.
When the appellant appeared before thе Local Board on October 1, 1956, he stated that he had become an ordained minister on March 1, 1953. He was duly notified of his 1-0 Classification, and he did not appeal.
*120 His letter of March 7, 1957, contained nothing new regarding his ordination as a minister, of which he had already orally informed the Board more than five months before.
As District Judge Jertberg correctly found, there was “nothing in the affidavits or in the transcript of the hearing (of May 23, 1957) which (contained) information which was not already before the Board and which the Board had not previously considered, and nothing which would justify a change in thе registrant’s classification.”
The Local Board Was Not Required To Advise the Appellant That It Would Not Reopen His Classification.
The appellant complains that the Board violated its own procedural regulations, in not advising him by letter that the information submitted by him did not warrant reopening his classification, etc.
In view of the appellant’s own failure to file a written request for the Board to reopen his classification, he cannot now objeсt that he was not advised that such classification would not be reopened. He failed to set the propеr machinery in motion by failing to file the required written request, supra.
Conclusion
In cases arising under the Universal Military Training and Service Act, as elsewhere in the law, an appellate court is not required to search the record with a microscope, in an effort to find minute but harmless flaws in the work of administrative bodies or of the lower courts. In the instant case, that is precisely what the appellant would have us do.
In Witmer v. United States,
We find that no substantial right of the appellant has been violated, and the judgment of the District Court is accordingly affirmed.